1. For present purposes, we will accept as true all well-pleaded

facts. Turbe v. Government of Virgin Islands, 938 F.2d 427, 428

(3d Cir. 1991).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEBRA A. LAFFERTY, et al. : CIVIL ACTION

:

v. :

:

GITO ST. RIEL, et al. : NO. 05-4094

MEMORANDUM

Bartle, J. November 8, 2005

This is a diversity action in which plaintiffs seek

damages for personal injuries allegedly suffered in an automobile

accident in West Earl Township, Lancaster County, Pennsylvania. 

The action was originally filed in the United States District

Court for the District of New Jersey where plaintiffs reside. 

That court found venue to be improper under 28 U.S.C. § 1391(a) 

because both named defendants reside in Pennsylvania, and it

transferred the action to this District pursuant to 28 U.S.C.

§ 1406(a). Before the court is the motion of defendants for

judgment on the pleadings. They contend that the action is

barred by the Pennsylvania statute of limitations.1

According to the complaint, the accident occurred on or

about July 17, 2003. The action was filed in the District of New

Jersey on July 11, 2005 and was ordered transferred to this

District on July 27, 2005. In a diversity action, the

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 1 of 15
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Constitution requires that we apply the substantive law,

including the conflict of laws rules, of the state where the

District Court sits. Erie R.R. Co. v. Tompkins, 304 U.S. 64

(1938); Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487

(1941). The substantive law of a state includes its statutes of

limitations. Guaranty Trust Co. of New York v. York, 326 U.S. 99

(1945). Erie and its progeny are grounded on the notion that

actions in a state court and a federal court involving the same

transaction or accident "should not lead to a substantially

different result." See Ferens v. John Deere Co., 494 U.S. 516,

524 (1990).

If an action is transferred from a federal district

court in one state to a federal district court in another state

under 28 U.S.C. § 1404(a) "for the convenience of the parties, in

the interest of justice," the Supreme Court has held in Van Dusen

v. Barrack, 376 U.S. 612, 639 (1964), and in Ferens, 494 U.S. at

527-28, that the law of the state where the action was initially

filed governs. A transfer under § 1404(a) presupposes that the

action was originally instituted in a correct forum. In

contrast, a transfer under § 1406(a) can occur only when the

case, like this one, is originally filed in the wrong forum. It

provides: "The district court of a district in which is filed a

case laying venue in the wrong division or district shall

dismiss, or if it be in the interest of justice, transfer such

case to any district or division in which it could have been

brought." Since venue in the District of New Jersey was

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 2 of 15
2. The New Jersey statute of limitations for personal injuries

is also two years. N.J. Stat. Ann. § 2A:14-2.

-3-

improper, the state law of the transferee forum, in this case,

the law of Pennsylvania, must be applied. Schaeffer v. Village

of Ossining, 58 F.3d 48, 50 (2d Cir. 1995); Tel-Phonic Services,

Inc. v. TBS Int'l, Inc., 975 F.2d 1134 (5th Cir. 1992). If this

were not the rule, plaintiffs would have every incentive to

initiate suit in the wrong federal forum if by doing so they

could obtain the benefit of more favorable law, including a

longer statute of limitations.

The Pennsylvania statute of limitations for a personal

injury action is two years. 42 Pa. Cons. Stat. Ann. § 5524(2). 

While the action was filed in the New Jersey federal court within

two years after the cause of action accrued,2 the defendants

argue that the Pennsylvania statute had run by the time the case

was transferred to this District on July 27, 2005, the accident

having occurred on July 17, 2003.

Under Pennsylvania law, an action is commenced by

filing with the prothonotary of a Common Pleas Court either a

praecipe for a writ of summons or a complaint. Pa. R. Civ. P.

1007. Tolling of the statute of limitations occurs at that time. 

See 42 Pa. Cons. Stat. Ann. §§ 5503 and 5524. Significantly,

Pennsylvania law also provides:

(a) ... A matter which is within the

exclusive jurisdiction of a court or district

justice of this Commonwealth but which is

commenced in any other tribunal of this

Commonwealth shall be transferred by the

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 3 of 15
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other tribunal to the proper court or

magisterial district of this Commonwealth

where it shall be treated as if originally

filed in the transferee court or magisterial

district of this Commonwealth on the date

when first filed in the other tribunal.

(b)(1) Subsection (a) shall also apply to

any matter transferred or remanded by any

United States court for a district embracing

any part of this Commonwealth. In order to

preserve a claim under Chapter 55 (relating

to limitation of time), a litigant who timely

commences an action or proceeding in any

United States court for a district embracing

any part of this Commonwealth is not required

to commence a protective action in a court or

before a district justice of this

Commonwealth. Where a matter is filed in any

United States court for a district embracing

any part of this Commonwealth and the matter

is dismissed by the United States court for

lack of jurisdiction, any litigant in the

matter filed may transfer the matter to a

court or magisterial district of this

Commonwealth by complying with the transfer

provisions set forth in paragraph (2).

42 Pa. Cons. Stat. Ann. § 5103(a) and (b)(1).

Thus, the statute of limitations is tolled when a

complaint is filed in a Pennsylvania state court or in any of the

three federal district courts within the borders of the

Commonwealth. Section 5103(b)(1) by its terms eliminates the

need for a state court protective action when a lawsuit is filed

in a Pennsylvania federal district court. If an action is timely

brought in the Eastern, Middle, or Western District of

Pennsylvania, it may be dismissed for lack of jurisdiction, or

transferred to a Pennsylvania state court or to one of the other

Pennsylvania federal courts without fear that the dismissal or

transfer will result in the statute of limitations barring the

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 4 of 15
3. This issue will not arise when a transfer occurs under 28

U.S.C. § 1404(a) since the law of the transferor court will

apply. See Van Dusen, 376 U.S. at 639.

-5-

action. That, however, is as far as § 5103(a) and (b)(1) goes. 

There are no provisions for tolling when a federal or state

action is filed elsewhere. Nor is there anything in § 5103(a)

and (b)(1) which states that the filing in a federal transferor

court outside of Pennsylvania constitutes the commencement of an

action for statute of limitations purposes if it is later

transferred to a Pennsylvania federal court.3 The reference in

§ 5103(a) and (b)(1) to the courts and district justices of

Pennsylvania and to United States courts for the districts

embracing a part of the Commonwealth necessarily means the

exclusion of all other courts. See Scott Twp. Appeal, 130 A.2d

695, 698 (Pa. 1957). Our Court of Appeals has reiterated that

"if the action is barred by a Pennsylvania statute of

limitations, no action can be maintained in Pennsylvania even

though the action is not barred elsewhere." Overfield v.

Pennroad Corp., 146 F.2d 889, 898 (3d Cir. 1945). Consequently,

in order to avoid the possibility that the statute of limitations

will bar an action in situations not exempted by § 5103(a) and

(b)(1), it is necessary for a plaintiff to file a protective

action in a Pennsylvania state court or one of the federal

district courts sitting within the Commonwealth. This, of

course, was not done here.

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 5 of 15
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We are mindful of Rule 3 of the Federal Rules of Civil

Procedure which reads, "a civil action is commenced by filing a

complaint with the court." Accordingly, we must determine

whether the Pennsylvania statute of limitations must be applied

or whether we are dealing with a matter of procedure where the

Federal Rules of Civil Procedure control. If Rule 3 prevails,

the clock stopped on July 11, 2005 when the action was filed in

the District of New Jersey. This would make the action timely.

We begin with the Supreme Court's decision in Hanna v.

Plumer, 380 U.S. 460 (1965). There the Court was faced with the

question whether service of process in a diversity case must be

made in accordance with state law or Rule 4(d)(1) of the Federal

Rules of Civil Procedure. While service complied with the

specific provisions of the Rule, Massachusetts required the

service of a complaint on an executor or administrator by

"delivery in hand," which had not occurred. The District Court

granted summary judgment to defendant because of inadequate

service, and the Court of Appeals affirmed. The Supreme Court

reversed. It held that the method of service was a matter of

procedure governed by Rule 4 and not by state law. The Court

explained, "The 'outcome-determination' test ... cannot be read

without reference to the twin aims of the Erie rule: 

discouragement of forum shopping and avoidance of inequitable

administration of the laws." Id. at 468. The Court went on to

observe that "To hold that a Federal Rule of Civil Procedure must

cease to function whenever it alters the mode of enforcing stateCase 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 6 of 15
-7-

created rights would be to disembowel either the Constitution's

grant of power over federal procedure or Congress' attempt to

exercise that power in the Enabling Act [28 U.S.C. § 2072]." Id.

at 473-74.

Some fifteen years later, in Walker v. Armco Steel

Corp., 446 U.S. 740 (1980), the Supreme Court again grappled with

the question as to when a diversity action is commenced for

purposes of the tolling of the Oklahoma statute of limitations. 

The Oklahoma limitations period continues to run until the

summons is served on the defendant, with certain exceptions not

relevant there. In that case, while the action was filed in the

United States District Court for the Western District of Oklahoma

within the two year statutory limitations period, the summons was

not served until thereafter. The Supreme Court held that the

state statute of limitations trumped Rule 3 of the Federal Rules

of Civil Procedure which, as noted above, provides that an action

is commenced when the complaint is filed with the court. The

Court explained that unlike the situation in Hanna, there was no

direct clash between a federal rule and state law. It concluded

that state law prevailed because the service requirement was:

an "integral" part of the statute of

limitations .... As such, the service rule

must be considered part and parcel of the

statute of limitations. Rule 3 does not

replace such policy determinations found in

state law. Rule 3 and [the Oklahoma statute

of limitations] can exist side by side,

therefore, each controlling its own intended

sphere of coverage without conflict.

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 7 of 15
4. We note that this opinion was issued prior to Congress'

enactment of 28 U.S.C. § 1367 and that it is no longer necessary

to dismiss state law claims that remain after the dismissal of

all federal claims. Nonetheless, this case is instructive with

respect to the application of § 5103.

-8-

Since there is no direct conflict between the

Federal Rule and the state law, the Hanna

analysis does not apply.

Id. at 752 (footnotes omitted). The Supreme Court made it clear

that the purpose of Rule 3 is not to toll the various state

statutes of limitations:

Rule 3 simply states that "[a] civil action

is commenced by filing a complaint with the

court." There is no indication that the Rule

was intended to toll a state statute of

limitations, much less that it purported to

displace state tolling rules for purposes of

state statutes of limitations. In our view,

in diversity actions Rule 3 governs the date

from which various timing requirements of the

Federal Rules begin to run, but does not

affect state statutes of limitations.

Id. at 750-51 (footnotes omitted). See Ragan v. Merchants

Transfer & Warehouse Co., 337 U.S. 530 (1949).

In Weaver v. Marine Bank, 683 F.2d 744 (3d Cir. 1982),4

our Court of Appeals had occasion to pass upon the transfer of an

action, with only state causes of action remaining, from the

United States District Court for the Western District of

Pennsylvania to the Court of Common Pleas of Erie County,

Pennsylvania under § 5103(b)(1). It noted that plaintiff was

"fortunate" that this provision was in place because it "obviates

the limitations problem that might otherwise confront plaintiffs"

from a dismissal. The Court of Appeals recognized that

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 8 of 15
5. Three separate protective actions had been timely filed in

state court although the writs of summons had not been served for

almost three years. Under the circumstances, there was a

significant question whether the protective actions tolled the

statute of limitations under state law.

-9-

§ 5103(b)(1) was critical in determining the statute of

limitations issue if no timely protective action had been filed.5

It observed "in the context of diversity jurisdiction, that a

state statute that bars a person from utilizing a state court

likewise precludes suit in the federal court .... Thus, state

law can effectively 'limit' the federal court's jurisdiction in

the diversity setting." 683 F.2d at 747 n.2.

For limitations purposes, the commencement of a

diversity action is a matter of state, not federal, law. Rule 3

of the Federal Rules of Civil Procedure does not control. 

Walker, 446 U.S. 740; Weaver, 683 F.2d 744. Accordingly, the

statute of limitations for an action governed by Pennsylvania law

is not tolled until it is commenced, that is, filed, with the

prothonotary of a court of the Commonwealth or in a federal court

embraced within the Commonwealth. Here, the action was not

transferred to the Eastern District of Pennsylvania from our

sister court in New Jersey until July 27, 2005. The initial

filing in the District of New Jersey on July 11, 2005 did not

constitute "commencement of an action" under Pennsylvania law. 

In sum, this action was not commenced, that is, filed, in a

federal court situated within the borders of Pennsylvania until

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 9 of 15
6. This court did not receive the file from the District of New

Jersey until August 1, 2005. We need not decide whether this

date or July 27, 2005 is the critical one for tolling purposes.

-10-

at least July 27, 2005,6 a date more than two years after

July 17, 2003 when the automobile accident took place and the

cause of action accrued. If this action had been brought

originally in the Court of Common Pleas in any of the 67 counties

of Pennsylvania or in the United States District Court for the

Eastern, Middle, or Western District of Pennsylvania on July 27,

2005, it would clearly have been out of time. While diversity

jurisdiction was established to reduce the potential for bias

against out-of-state citizens such as the New Jersey plaintiffs

here, it was not designed to advantage them with a statute of

limitations which is longer than what is available to plaintiffs

who happen to be citizens of the Commonwealth and cannot take

advantage of the federal court's diversity jurisdiction. York,

326 U.S. at 109-112.

Plaintiffs cite Burnett v. N.Y. Central R.R. Co., 380

U.S. 424 (1965), in opposition to defendants' motion for judgment

on the pleadings. This case is inapposite. It involved the

Federal Employees' Liability Act ("FELA"), 45 U.S.C. §§ 51 et

seq. The Supreme Court has interpreted the limitations period

under the FELA as tolled once such an action is filed in a state

court, even though later dismissed for improper venue, if a

federal court action is later filed after the limitations period

has expired. Burnett, 360 U.S. at 431-33. The Supreme Court

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 10 of 15
-11-

rightly analyzed the issue as one of legislative intent. Id. at

426. We, of course, are not concerned here with the FELA which

establishes a federal claim for relief and contains its own

statute of limitations.

The plaintiffs also rely on Mayo Clinic v. Kaiser, 383

F.2d 653 (8th Cir. 1967), a medical malpractice action originally

filed in the United States District Court for the Southern

District of Illinois. That court granted a motion to transfer to

the District of Minnesota. The Court of Appeals treated the

transfer as one under § 1406(a). While the action was filed in

the Southern District of Illinois within Illinois' and

Minnesota's two year statutes of limitations, both had expired by

the time the action was transferred to the District of Minnesota. 

Looking to the Illinois statute of limitations, the court held

that the statute was tolled once the case was commenced in

Illinois and that it remained tolled thereafter when transferred

to Minnesota. Regardless of whether the court should have looked

to Minnesota rather than Illinois law when a case is transferred

under § 1406(a), the significant point remains that the court

focused on its interpretation of state law in determining whether

the limitations period was tolled. Cf. Schaeffer, 58 F.3d 48. 

Since the court did not analyze Pennsylvania law, Mayo Clinic is

of no help to plaintiffs.

Section 1406(a), unlike § 1404(a), authorizes a

transfer from a district "in which is filed a case laying venue

in the wrong division or district." The Supreme Court in

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 11 of 15
-12-

Goldlawr, Inc. v. Herman, 369 U.S. 463 (1962), a private

antitrust action, held that § 1406(a) authorized a district court

to transfer an action to another district court even where the

transferor court lacked personal jurisdiction over the

defendants. The Court recognized that § 1406(a) was enacted to

avoid the harsh result of dismissal when a party errs in filing a

timely lawsuit in the wrong forum. Without § 1406(a), a

dismissal could put a party out of court if it occurs after the

statute of limitations has expired. The Supreme Court observed,

"When a lawsuit is filed, that filing shows a desire on the part

of the plaintiff to begin his case and thereby toll whatever

statutes of limitation would otherwise apply." 369 U.S. at 467. 

Goldlawr, it must be emphasized, involved a transfer of a claim

for relief under the federal antitrust laws. The Court,

therefore, had no occasion to discuss the application of

§ 1406(a) when state causes of action or state statutes of

limitations are involved, and the Court, of course, did not

discuss the Erie doctrine. It was also decided before Walker.

We acknowledge that one of the salutary purposes of

§ 1406(a) is to permit a transfer to overcome the bar of the

statute of limitations that might otherwise result if an action

is dismissed by a federal court for improper venue or lack of

personal jurisdiction. Goldlawr, 369 U.S. 463. It clearly

serves this intended purpose where federal questions are

involved. It also does so in diversity cases when the statute of

limitations of the state in which the transferee court sits has

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 12 of 15
-13-

not expired or the transferee state has an appropriate savings

provision in its law. Nonetheless, unlike a transfer under

§ 1404(a), a transfer under § 1406(a) is not merely a change in

courtrooms where the action can be properly filed and tried in

either place. A party under Erie has the benefit of the law of

the state of the transferor court when it is a proper but

inconvenient forum. Van Dusen, 376 U.S. at 637-40. In this way,

"the 'accident' of diversity jurisdiction does not enable a party

to utilize a transfer to achieve a result in federal court which

could not have been achieved in the courts of the state where the

action was filed." Id. at 638. The Supreme Court describes

§ 1404(a) as "a housekeeping measure." Ferens, 494 U.S. 516; Van

Dusen, 376 U.S. at 636. We see no reason why § 1406(a) should

not be characterized in the same manner, but it does not follow

that Erie requires the application of the law of the transferor

court when it is the wrong, as opposed to an inconvenient, forum. 

Indeed, in our view, Erie requires the opposite, that is, that

when a transfer occurs pursuant to § 1406(a) the law of the

transferee forum should be applied. The precedents support this

principle. Schaeffer, 58 F.3d 48; Tel-Phonic Services, 975 F.2d

1134. Otherwise, as we have noted earlier, a plaintiff could use

the accident of diversity jurisdiction to file in a district

where venue is wrong or personal jurisdiction is absent in order

to obtain the benefit of more favorable law, including a longer

statute of limitations, than would be available if diversity did

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 13 of 15
-14-

not exist. This result would make § 1406(a) much more than "a

housekeeping measure."

In conclusion, neither Rule 3 of the Federal Rules of

Civil Procedure nor § 1406(a) mandates the tolling of a

Pennsylvania statute of limitations when a plaintiff files a

diversity action in a federal court outside of Pennsylvania where

venue is improper or personal jurisdiction is lacking and the

action is later transferred to a federal court within

Pennsylvania. Only Pennsylvania law may do so. Unfortunately

for plaintiffs, the Commonwealth's General Assembly has chosen to

adopt limited saving provisions under § 5103(a) and (b)(1). 

These provisions are not applicable here since this action was

not commenced, that is filed, within the relevant two-year

limitations period in a Pennsylvania state court or in a federal

court for a district embracing any part of the Commonwealth. The

result for the plaintiffs is indeed harsh and puts them out of

court, but the doctrine of Erie and its progeny compels this

outcome.

Accordingly, we must grant the motion of defendants for

judgment on the pleadings.

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 14 of 15
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEBRA A. LAFFERTY, et al. : CIVIL ACTION

:

v. :

:

GITO ST. RIEL, et al. : NO. 05-4094

ORDER

AND NOW this 8th day of November, 2005, for the reasons

set forth in the accompanying Memorandum, it is hereby ORDERED

that the motion of defendants Gito St. Riel and Achenbach's

Pastries, Inc. for judgment on the pleadings is GRANTED.

BY THE COURT:

/s/ Harvey Bartle III 

J.

Case 2:05-cv-04094-HB Document 9 Filed 11/08/05 Page 15 of 15